The airline stopped short of requiring vaccination for its employees. But the move to attach a health premium to unvaccinated employees isn’t without risk, especially with unions involved.
Indeed, the Air Line Pilots Association’s Delta Master Executive Council, which represents nearly 13,000 pilots at the airline, almost immediately voiced concerns about the surcharge, saying in a statement that it has advocated “to maintain the right of each individual pilot to consult with his or her medical provider regarding COVID-19 vaccinations or booster doses.” It went on to say that Delta needs to “bargain with the Delta MEC over any employer-mandated vaccination for pilots.”
Vaccine approval floodgates opening
A tidal wave of employers rolled out pro-vaccine policies in the wake of FDA approval earlier this week, a sharp pivot from earlier in the pandemic when companies were plagued by concerns over the associated legal liabilities. Attorney Devjani Mishra, who represents employers for law firm Littler Mendelson, attributes the shift to “everything that’s happened over the last eight months” in addition to the agency’s sign-off.
“Between people getting comfortable with having firsthand experience with the vaccine, and confirmation from a number of different sources, the different public mandates that have come into play for certain industries — everything has made it much more conceivable that you could have an employer imposing a mandate,” Mishra said.
But implementing a health insurance surcharge is legally much more complex than mandating the vaccine, Mishra said: “There’s a reason there’s a lot of fine print in insurance plans.”
“Employers have tried that in a number of different areas in the past — you see it with different premiums for smoking and nonsmoking — but the rules around changing insurance premiums are complicated,” Mishra said. “It’s not something that you can kind of undertake lightly; you really need benefits counsel to make sure that you do it correctly and that you follow the appropriate rules.”
“But there were also a lot of exceptions to those rules,” she added. So “whether it actually manages to achieve the result you want is dubious.” She pointed to individuals who have medical conditions preventing them from receiving the vaccine as an example. “There are rules about not discriminating against those individuals.”
Experts say that the decision to pressure workers to vaccinate by upping their health care costs — rather than requiring they get the vaccine — makes it easier for employers to rationalize the policy to employees who are reluctant to get a shot.
“The fact that they didn’t choose a mandate might speak more to their employee base’s sentiment about vaccination and possibly their customer sentiment,” said Laura Boudreau, an assistant professor of economics at Columbia Business School who studies working conditions. “If you look at the policy itself, they’re basically trying to not employ a de jure mandate but a de facto one by making it difficult for employees to maintain a non-vaccinated statement. Some companies, like Delta, are reluctant to go so far as to mandate formally, but reading these memos, these are de facto mandates.”
It’s likely that additional employers will adopt a similar policy as an easily defensible, middle-of-the-road approach to getting their workforce vaccinated in the throes of the Delta variant, not to mention additional ones.
“I do think we’ll see more companies adopting this kind of policy,” Boudreau said. “It’s a very clear rationale that companies can use to explain this type of policy to their employees: As with choices like smoking, especially now that the vaccine is fully FDA approved, it’s possible for the employer to say that these employees are imposing a cost by maintaining a non-vaccinated status.”
Richard Aboulafia, an aviation industry expert, agreed that Delta’s decision is an effective compromise.
“Mandates are politically fraught, and airlines are having a difficult time with staffing as it is,” said Aboulafia, vice president and analyst at the Teal Group. “But this is a market solution, one that tells airline employees that the costs associated with having unvaccinated workers shouldn’t be borne by businesses.”
Other steps announced Wednesday by Bastian include a mask requirement for all employees in indoor settings and an end to Covid-19 pay protections for unvaccinated Delta staffers. Unvaccinated employees will also be required to undergo weekly Covid-19 tests.
Vaccine mandates are popular with a majority of voters, according to a Morning Consult/POLITICO poll.
Unions coming around on mandates
Once divided on vaccine mandates, unions are now mostly united in their support for the policy. The nation’s two largest teachers unions, AFT and NEA, have backed the idea after initially declining to endorse it. And earlier this week, the union that represented Walt Disney World employees reached an agreement with Disney to require all unionized workers be fully vaccinated by October.
Unions are requesting that employers bargain with their workers to reach agreement on the shape of the policy. Several have successfully secured perks for their members by doing so: The Association of Flight Attendants negotiated an optional program providing three extra vacation days to United Airlines flight attendants who received the vaccine.
“My sense is that unions were in a wait-and-see mode, but more on the legal precedent side,” Boudreau said. “But it’s very clear for fully approved vaccines that employers can mandate vaccines. So I think from a union’s perspective at this stage, it’s more about how to push the employer to engage to craft those policies in a way that’s best for their members.”